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Scrutiny by Hemantha Warnakulasuriya Recently the Chief Justice Sarath N. Silva made a startling revelation with regard to certain statistics on crime. He said that only 4% are convicted of those charged in courts of law. Virtually 96% go scott free without incurring any punishment. This ought to be compared with the percentage of convictions in Japan where 99% of those persons brought to Court are convicted.

The civil society has on many an occasion pointed its finger at the Police and other law enforcement agencies for this somber situation we are faced with. But very few have pointed an accusing finger at other agencies involved in the administration of justice. Sri Lanka has had the undisputed record of being one of the few countries who have maintained their level of crime in relation to the population and has always been placed within the first ten out of about 300 countries in the world. In 1955 and 1957 we had the highest rate of murder in the world. We were aggressively competing to keep our unique position in the crime ladder with cities like Chicago. Thus it seems we need not be unduly perturbed by the knowledge that we continue to keep pace with other similar violent and brutal countries of the world. It is, however, necessary to examine in-depth what the Chief Justice said. How is that only 4% is convicted of crime? Of the 96% who are not convicted, a large percentage of the offenders' offences are compounded either at the Mediation Board or in Courts.

It is generally considered that breaking a limb or cutting of such a limb with a sharp cutting instrument, to wit sword or a Kris Knife, is a serious offence at least for the victim, though his vital organs may not be permanently impaired, but the schedule to the Mediation Boards Act has vetoed the Magistrate Court from taking cognizance of such an offence unless it is first brought before the Mediation Board and a certificate of non settlement is annexed to the report of the police to court.

In contrast, in developed countries such as the USA breaking a limb or cutting with a sword or knife is a felony warranting imprisonment which may extend up to 20 years. But today mediators of the Mediation Boards force the parties to settle such grave crime out of court by means of the spurious reasoning that the ensuing result would be the same even in court.

What has made our Law Commission and other members of the legal fraternity in Parliament to agree to enact such a horrible piece of legislation called the Mediation Board Act? The reason adduced is the cry that courts are over-loaded with work and the courts have to decide on more serious crimes like traffic offences, income tax offences and offences committed by people not having paid taxes and duties to the Government so much so that some courts have become virtual collecting agencies for the Government. So in order to relieve the burden of court, and prevent delays, the power to settle these grave crimes are delegated to some individuals in the Mediation Boards who have absolutely no training in law. Therefore most victims of crime feel there is absolutely no justice meted out to them by this system. Recently a District Judge who met with traffic accident by being knocked from behind stopped his vehicle to inquire. A man who had witnessed the accident had assaulted the judge who was reluctant to take action as he had to appear before the Mediation Board to listen to the preaching of the Board's chairman. In another incident a powerful minister's son got drunk at a night club and assaulted another boy on some dispute as regards a girl. The police did not arrest the particular offender, as the matter has to come up before the Mediation Board. Recently a journalist who went to a house on an assignment was abused threatened and virtually assaulted. The Magistrate had no alternative but to refer the matter to the Mediation Board.

Do the Magistrate's force the parties to settle in court and thoroughly discourage them going to trial?. The real reason is that normal courts are inundated with work with vast backlog of work. It will be a herculean task to hear and determine cases of this serious nature by going to trial. The Criminal Procedure code permits settlement of disputes in court. This is being done in order to satisfy the public who are not the victims of crime. Every one seems to be happy with this order of things. They repeat the dictum justice delayed is justice denied ad naseum not realizing the plight of the victim who had invariably been brutalized by the offender. But yet it is true and is a matter for regret that cases involving bodily harm and injuries are settled in court by forcing such a settlement much against the wishes of the complainants. This happens day in and day out in the Magistrate's Courts.

A very few Magistrates try to force settlement on parties, discharge accused for the flimsiest of reasons, strike off cases on the grounds that accused and witnesses are not found and warrants issued without the cases being called on a further date. Furthermore on the trial date the accused are discharged if all witnesses are not present. Everyone seems to be happy. The accused are the happiest. The chances of accused being discharged are about 90% and the victims of crime are shocked beyond belief that the criminal who ought to be in jail is back in the village threatening to commit murder of the complainant for having gone to the police station. The vicious dastardly circle of crime continues without any abatement.

Therefore the remark made by the Chief Justice has to be judged in the these contexts. The main reason for the remark of the Chief Justice, is I believe that legislators at various times decreased the enormity of the serious offences to being trivial ones that could be compounded at the police stations, Mediation Board and only in the last resort in court. The Government has not made much provision in the budgetary allocation to have more courts established; more judges appointed so that cases would not be delayed. A Magistrate's Court is so heavily loaded with work it is physically impossible to conclude trials without entailing delay. The remands are full of people who ought to have been released on bail. The Chief Justice commented that even in the High Court, Kandy the trial role extends to nearly one year. The wheel of justice turns so slowly that finally when complaints after the initial settlement at the Mediation Board fail and brought before courts that are themselves inundated with work inducing parties to agree to settlement in view of the legislative enactment making these offences compoundable. Summonses are not served. The Police due to the lack of staff do not execute warrants. It seems everything is weighed against the victim.

As much as justice delayed is justice denied, justice hurried is justice buried especially for the victims of crime. The situation should be reviewed and if the legislature is seriously interested in curbing crime, the Mediation Board Act with reference to criminal offences must be deleted and any hurt other than simple hurt ought not to be compoundable even in court and the provision for suspended sentences ought to be repealed so that an accused convicted ought not to escape jail merely because he has no previous convictions.

In these circumstances the Judicial Service Commission is rendering yeoman service in establishing order and discipline among the junior judges. This fact must be commended. We know that in the past two or three years, even Magistrates have been removed for alleged misdemeanours. The cancer of corruption finds no obstacle in entering a body whose immune system has been destroyed by rampant greed. So far the minor judiciary has been spared mainly because of the actions of the actions of the Judicial Service Commission.

If one is interested in curbing this trend, then a symposium must be convened of all interested in these matters that are now discussed in hushed tones. These could be aired out and suitable action taken or legislation brought in to stem the slide which if continues go to a dark unfathomable abyss.

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